1. Sources of Power for Administrative Agencies:
a. Federal Administrative Procedure Act
i. Governs process by which administrative agencies function
b. Statutes
c. Constitutional Law
Constitutional Limitations on the Distribution of Administrative Power:
2. Non-Delegation Doctrine and Rulemaking Power: Constitution vests legislative power in Congress. The NDD regulates how much discretionary authority Congress may delegate to an agency for rulemaking authority
a. Status of Non-Delegation Doctrine Today:
i. Weak: located closer to the end of the continuum in which the delegation that states nothing is still valid
b. Methodology of Non Delegation Analysis: For Final Exam
i. All that is required is an intelligible principle
1. Finding an intelligible principle: analogical analysis
a. Is it more or less like the statutes that have been upheld or struck down (only two have been struck down: panama and Schechter)
2. The amount of agency discretion that is acceptable varies according to the scope of power congressionally conferred
a. Broad delegation of power requires more than narrow delegation of power
c. Intelligible Principle Test: J.W. Hampton v. US:
i. SCOTUS: delegation is permissible when Congress “lays down by legislative act and intelligible principle to which the person or body authorized to fix such rates is directed to perform”
d. Types of Non-Delegation Cases: Use For Analogical Survey
i. “Filling up the details”: All these cases upheld the delegation
1. Brig Aurora (1813): Congress suspended any trade with Britain or France for hazing our ships on the seas, but if the president finds that these countries have backed off, then trade may resume
2. Field v. Clark (1892): President given unilateral authority to impose reactive trade restrictions on countries that do the same to the US
1. US v. Grimaud (1911): USDA given authority to adopt rules governing the use of the forests and set criminal standards
a. SCOTUS: this is appropriate: Congress may pass legislation that allows the executive branch to fill in the details, even the important details
3. Yakus v. US (1944)
a. Nationalized every sector of the economy
b. Delegating legislation did give binding factors
nt may if he chooses, criminalize an interstate shipment of oil if he finds it to violate any state law that he chooses to identify: complete carte blanche
a. SCOTUS: this statute has zero standards that indicate what the people want at least at the broadest level
b. Congress cannot simply take an important sector of the economy and hand it over to the executive branch and say fix it
3. Schechter Poultry:
a. Authority to president to authorize private counsels in every sector of every industry and the president may then set binding codes of fair competition that would govern the marketplace and be enforceable by federal law
b. SCOTUS: President may legally decline to take action under any set of circumstances
iii. The Benzene Cases: Nondelegation as a statutory interpretation:
1. Benzene: To what extent should we command industry to spend resources to take precaution against work place substance against a real but unquantifiable real medical risks?